By Suzanne J DeCopain, Esq., Associate
Published in FAHROgram May/June 2018 edition

In 2013, HUD issued Fair Housing Equal Opportunity Notice 2013-01 to assist housing providers obligated to comply with the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act in understanding their responsibilities to individuals who require assistance and service animals. In 2004, HUD, along with the Department of Justice, issued a Joint Statement on Reasonable Accommodations under the Fair Housing Act, which provides the platform of how housing providers should address all reasonable accommodation requests. Although the notice addresses service animals and assistance animals, this article concentrates on reasonable accommodations for assistance animals.

HUD defines assistance animals as animals that serve as a reasonable accommodation for persons with disabilities. A reasonable accommodation request, regardless if it is for an assistance animal or not, must be considered and addressed within a reasonable time. The requester is not required to use the “magic” words reasonable accommodation. After a request is made for an assistance animal, the housing provider must conduct the following analysis as outlined in the notice:

1. Does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities?

2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is yes, the housing provider must modify its rules and/ or policies to allow the person with the disability to live with the assistance animal. There are exceptions, however, in granting the accommodation. In order to deny a reasonable accommodation request for an assistance animal, the assistance animal must pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation or the assistance animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Housing providers are faced with more and more reasonable accommodation requests for assistance animals, specifically requests for animals prohibited due to the animal’s breed or requests for multiple animals when the pet policy prohibits the number of pets to one or two. A housing provider must not deny a request for an assistance animal simply because the housing provider does not allow that particular breed on its property. But what if there is a local ordinance banning a particular dog breed?

At least one court ruled that the Fair Housing Act preempted a local ordinance that banned a certain dog breed. See Warren v. Delvista Towers, 49 F. Supp. 3d 1082 (S.D. Fla. 2014). If the requestor is disabled and can establish a disability-related need for that particular breed and no exceptions apply, the housing provider must grant the request. Because the exceptions only apply to the particular animal requested, housing providers must be able to substantiate their claims that the particular animal requested poses a direct threat. Additionally, even if the particular animal requested poses a direct threat, there must be a showing that there is nothing that will reduce or eliminate the direct threat by another reasonable accommodation. In Gill Terrace Retirement Apartments v. Johnson, the court found that the landlord’s denial of the tenant’s reasonable accommodation was supported because the animal requested posed a direct threat that could not be mitigated. See 177 A. 3d 1087 (2017). The court in Gill considered the aggressive behavior of the animal, the inability of the tenant to control the animal and the fact that other residents were deliberately staying in their units to avoid interacting with the animal because they were afraid. Id.

The HUD /DOJ joint statement provides other exceptions that apply to a reasonable accommodation request for an assistance animal. There is an exception if the accommodation would impose an undue financial and administrative burden on the housing provider’s operations and an exception if the accommodation would fundamentally alter the nature of the housing provider’s operations. Even if the housing provider deems the accommodation unreasonable, the housing provider must still determine if there are any alterative accommodations that would address the request without imposing an undue burden.

Most housing providers include in their pet policies that only a certain number of pets are permitted in each unit. To safeguard against having multiple animals in a unit, the housing provider should obtain verification that each animal requested serves a disability- related need. While a requestor could have a few animals in the unit, the requestor is obligated to follow all of the housing provider’s rules, such as proper waste disposal.

A housing provider has legitimate concerns regarding maintaining the property in a decent and safe condition. If a housing provider grants a reasonable accommodation for an assistance animal, it is recommended that the housing provider have the requestor acknowledge his or her responsibilities in writing.

Each request should be analyzed on a case-by-case basis. To ensure compliance with the Fair Housing Act and other applicable laws, housing providers should always consult legal counsel at each stage of the reasonable accommodation process.

 

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